NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

TAMPA BAY FISHERIES, INC., SINGLETON 

FISHERIES, INC.,

Plaintiffs-Appellants

v.

UNITED STATES, UNITED STATES CUSTOMS 

AND BORDER PROTECTION, DAVID V. AGUILAR, 

ACTING COMMISSIONER, UNITED STATES 

CUSTOMS AND BORDER PROTECTION, 

INTERNATIONAL TRADE COMMISSION, IRVING 

A. WILLIAMSON, CHAIRMAN, U.S. 

INTERNATIONAL TRADE COMMISSION,

Defendants-Appellees

______________________ 

2012-1419

______________________ 

Appeal from the United States Court of International 

Trade in No. 08-CV-0404, Judge Leo M. Gordon.

______________________ 

Decided: April 29, 2015

______________________ 

JAMES KEVIN HORGAN, DeKieffer & Horgan, PLLC, 

Washington, DC, argued for plaintiffs-appellants. Also 

represented by JOHN J. KENKEL. 
2 TAMPA BAY FISHERIES, INC. v. US

MARTIN M. TOMLINSON, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for defendants-appellees 

United States, United States Customs and Border Protection, David V. Aguilar, Acting Commissioner. Also represented by JESSICA R. TOPLIN, STUART F. DELERY, JEANNE 

E. DAVIDSON, FRANKLIN E. WHITE, JR.; SUZANNA 

HARTZELL-BAIRD, JESSICA MILLER, Office of Assistant 

Chief Counsel, United States Customs & Border Protection.

PATRICK VINCENT GALLAGHER, JR., Office of the General Counsel, United States International Trade Commission, Washington, DC, argued for defendants-appellees 

International Trade Commission, Irving A. Williamson, 

Chairman. Also represented by DOMINIC L. BIANCHI, 

ROBIN LYNN TURNER. 

______________________ 

Before PROST, Chief Judge, BRYSON, and O’MALLEY,

Circuit Judges.

O’MALLEY, Circuit Judge. 

Tampa Bay Fisheries, Inc. (“Tampa Bay”) and Singleton Fisheries, Inc. (“Singleton”) (collectively, “Appellants”)

appeal the final judgment of the United States Court of 

International Trade (“Trade Court”) dismissing their 

complaint for failure to state a claim. See Tampa Bay 

Fisheries, Inc. v United States, 825 F. Supp. 2d 1331 (Ct. 

Int’l Trade 2012). Because the Trade Court properly 

determined that the parties failed to allege sufficient facts 

upon which relief could be granted, we affirm. 

BACKGROUND

Following a 2003 petition on behalf of the domestic 

shrimp industry to the Department of Commerce (“Commerce”) regarding the importation of certain frozen and 

canned warm water shrimp from Brazil, Ecuador, India, 
TAMPA BAY FISHERIES, INC. v. US 3

China, Vietnam, and Thailand, Commerce instituted an

antidumping investigation. Contemporaneously, the 

International Trade Commission (“Commission”) began to 

examine whether these shrimp imports were threatening 

the domestic shrimp industry. To determine if the domestic industry was injured, the Commission sent questionnaires to the domestic industry, asking if they supported, 

opposed, or took no position on the 2003 petition.

After its investigation, the Commission found that the 

domestic industry was injured by the import of canned 

frozen shrimp, and Commerce issued its antidumping 

duty orders on these imports February 1, 2005. See

Certain Frozen or Canned Warmwater Shrimp and 

Prawns from Brazil, China, Ecuador, Thailand, and 

Vietnam, 70 Fed. Reg. 3943 (Jan. 27, 2005); Notice of 

Amended Final Determination of Sales at Less Than Fair 

Value and Antidumping Duty Order: Certain Frozen 

Warmwater Shrimp from Brazil, 70 Fed. Reg. 5143 (Feb. 

1, 2005); Notice of Amended Final Determination of Sales 

at Less Than Fair Value and Antidumping Duty Order: 

Certain Frozen Warmwater Shrimp from Thailand, 70 

Fed. Reg. 5145 (Feb. 1, 2005); Notice of Amended Final 

Determination of Sales at Less Than Fair Value and 

Antidumping Duty Order: Certain Frozen Warmwater 

Shrimp from India, 70 Fed. Reg. 5147 (Feb. 1, 2005);

Notice of Amended Final Determination of Sales at Less 

Than Fair Value and Antidumping Duty Order: Certain 

Frozen Warmwater Shrimp from the People’s Republic of 

China, 70 Fed. Reg. 5149 (Feb. 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value 

and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 70 

Fed. Reg. 5152 (Feb. 1, 2005); Notice of Amended Final 

Determination of Sales at Less Than Fair Value and 

Antidumping Duty Order: Certain Frozen Warmwater 

Shrimp from Ecuador, 70 Fed. Reg. 5156 (Feb. 1, 2005). 
4 TAMPA BAY FISHERIES, INC. v. US

Under the statutory scheme at the time, any duties 

collected by the United States Customs and Border Patrol 

(“Customs”) under these dumping orders were distributed 

to affected domestic producers. Continued Dumping and 

Subsidy Offset Act (“CDSOA” or “the Byrd Amendment”), 

19 U.S.C. § 1675c(a) (2000), repealed by Deficit Reduction 

Act of 2005, Pub. L. No. 109-171, § 7601, 120 Stat. 4, 154 

(Feb. 8, 2006; effective Oct. 1, 2007). To qualify as an 

affected domestic producer, one had to demonstrate that 

it “was a petitioner or interested party [who] supported . . 

. the petition with respect to which an antidumping duty 

order . . . ha[d] been enter[ed].” Id. § 1675c(b)(1)(A) (“the 

support requirement”). Once a duty order issues, the 

Commission forwards a list of affected domestic producers 

to Customs, which will distribute all the funds from the 

assessed duties collected in the prior fiscal year to those 

affected parties who have certified that they are eligible 

to receive a CDSOA distribution. Id. § 1675c(d)(1)–(3). 

In connection with Commerce’s antidumping investigation regarding shrimp imports, the Commission did not 

list Tampa Bay or Singleton as an affected domestic 

producer for the relevant years—2006, 2007, and 2008. 

Tampa Bay and Singleton nevertheless filed certifications 

with Customs, stating that they were entitled to CDSOA 

distributions. But, because neither was listed as an 

affected domestic producer, Customs refused to administer any funds to either party. In November 2008, Tampa 

Bay and Singleton requested that the Commission amend 

the list of affected domestic producers to include both 

parties in November 2008. Without any evidence that 

either Tampa Bay or Singleton supported the petition 

during the original investigations, the Commission denied 

the request in December 2008.

Also during this time, on November 14, 2008, Tampa 

Bay and Singleton filed suit against the Commission and 

Customs, challenging the Commission’s failure to add 

Tampa Bay and Singleton to the list of affected domestic 
TAMPA BAY FISHERIES, INC. v. US 5

producers and Customs’ decision not to make a distribution to Tampa Bay or Singleton for fiscal years 2006, 

2007, and 2008. While neither Tampa Bay nor Singleton 

alleged that they expressed support for the 2003 petition 

in their questionnaire responses or through a letter, they 

asserted that they supported the petition in other ways. 

They also argued that, if the Byrd Amendment is construed to require a show of support via a particular form 

of expression—i.e., checking a box on a questionnaire or 

writing a letter—it is unconstitutional. Because these 

issues were then being considered in other pending cases, 

the Trade Court stayed the case pending the final resolution of the other litigation. Tampa Bay Fisheries, 825 F. 

Supp. 2d at 1336. Following this court’s decision in SKF 

USA Inc. v. United States Customs & Border Protection, 

556 F.3d 1337 (Fed. Cir. 2009), which both construed the 

Byrd Amendment to require both a show of support via a 

questionnaire response or a letter and other affirmative 

efforts to aid the investigation, and upheld the constitutionality of the Byrd Amendment as so construed, the 

Trade Court issued an order asking Tampa Bay and 

Singleton to show cause why their case should not be 

dismissed in light of SKF. Id. Upon review of their

response, the Trade Court lifted the stay, and, on March 

18, 2011, Tampa Bay and Singleton filed an amended 

complaint. 

In their amended complaint, Tampa Bay and Singleton raised five separate claims. They alleged that: (1) the 

agencies’ decisions were inconsistent with the CDSOA, 

were not supported by substantial evidence, and were 

otherwise not in accordance with law; (2) the support 

requirement of the CDSOA violates the First Amendment 

of the Constitution; (3) this same requirement also violates the Equal Protection Clause; (4) the support requirement contravenes the Due Process Clause because it 

is impermissibly retroactive; and (5) financial evidence of 

support should be considered when determining whether
6 TAMPA BAY FISHERIES, INC. v. US

a party meets the support requirement of the CDSOA. 

Again, neither Tampa Bay nor Singleton alleged that they 

indicated support for the investigation in writing. Based 

in part on this court’s ruling in SKF, the Commission and 

Customs then moved to dismiss the amended complaint 

for failure to state a claim. 

Upon consideration, the Trade Court dismissed Tampa Bay and Singleton’s entire complaint. With respect to 

count one and count five, the Trade Court concluded that

both parties had failed to state facts that they qualified 

for CDSOA distributions because there was no allegation 

either party supported the petition via letter or questionnaire response, as required by law. Tampa Bay Fisheries, 

825 F. Supp. 2d at 1340–42. Regarding Tampa Bay and 

Singleton’s Equal Protection and First Amendment 

claims, the Trade Court dismissed these claims, finding 

that this court’s decision in SKF foreclosed their requested relief. Id. at 1343–45. Lastly, the Trade Court concluded that both parties lacked standing to raise a due 

process retroactivity claim because Tampa Bay and 

Singleton both completed their responses to the Commission’s questionnaires after the enactment of the CDSOA;

thus, there was no basis to find that the CDSOA was 

applied retroactively to either party. Id. at 1345.1 

Appellants timely appealed the Trade Court’s decision 

to this court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(5). 

DISCUSSION

Whether a party before the Trade Court has sufficiently stated a claim for relief is a question of law we 

1 Both Tampa Bay and Singleton conceded dismissal of this count as well. See Tampa Bay Fisheries, 825 F. 

Supp. 2d at 1345. Neither party disputes this finding on 

appeal. 

 
TAMPA BAY FISHERIES, INC. v. US 7

review de novo. Sioux Honey Ass’n v. Hartford Fire Ins. 

Co., 672 F.3d 1041, 1049 (Fed. Cir. 2012) (citing Boyle v. 

United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000)). 

Questions of statutory or constitutional interpretations 

are also questions of law that are reviewed de novo. See 

Ashley Furniture Indus., Inc. v. United States, 734 F.3d 

1306, 1309 (Fed. Cir. 2013), cert. denied, 135 S. Ct. 72 

(2014). 

Under Court of International Trade Rule 8(a)(2), a 

pleading must include “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” 

Although this standard does not require “detailed factual 

allegations,” it does require more than “a formulaic recitation of the element of a cause of action.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007)). Thus, “[t]o survive a 

motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief 

that is plausible on its face.’” Id. (quoting Twombly, 550 

U.S. at 570). “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. 

at 556). “In deciding a motion to dismiss, the court must 

accept well-pleaded factual allegations as true and must 

draw all reasonable inferences in favor of the claimant.” 

Kellogg Brown & Root Servs., Inc. v. United States, 728 

F.3d 1348, 1365 (Fed. Cir. 2013).

In this case, Tampa Bay and Singleton’s statutory and 

constitutional claims are foreclosed by this Court’s decisions in SKF, PS Chez Sidney, LLC v. United States 

International Trade Commission, 684 F.3d 1374 (Fed. Cir. 

2012), and Ashley Furniture Industries, Inc. v. United 

States, 734 F.3d 1306 (Fed. Cir. 2013). In SKF, we found 

that the statute unambiguously required, among other 

things, a show of support for the investigation via questionnaire response or a letter and that, in the absence of 
8 TAMPA BAY FISHERIES, INC. v. US

such statements of support, other efforts which might 

happen to assist an investigation were insufficient to 

qualify an entity as an affected domestic producer under 

the Act. 556 F.3d at 1352–53. We then found that this 

type of support requirement did not violate the First 

Amendment. Id. at 1360. Specifically, we concluded that 

the purpose of the statute was to compensate those parties who assisted with the government’s trade investigations because “the Byrd Amendment’s language providing 

for payments to a ‘petitioner or interested party in support of the petition’ [] only permit[s] distributions to those 

who actively supported the petition (i.e., a party that did 

no more than submit a bare statement that it was a 

supporter without answering questionnaires or otherwise 

actively participating would not receive distributions).” 

Id. at 1353 n.26. Thus, we decided that the support 

requirement should be treated like commercial speech, as 

is the case when the government commercially contracts 

with a party for their assistance in a government function. Id. at 1355. Because the government has a substantial interest in preventing dumping, the Byrd Amendment 

directly advances this interest by rewarding parties who 

assist in trade law enforcement, and the amendment was 

not overly broad, we determined that the Byrd Amendment did not run afoul of the First Amendment. Id. at 

1355–60. Finally, we also rejected an Equal Protection 

challenge in SKF, finding that “the Byrd Amendment 

[was] rationally related to the government’s legitimate 

purpose of rewarding parties who promote the government’s policy against dumping.” Id. at 1360. 

The court next considered the support requirement in 

Chez Sidney. In that case, the government denied Chez 

Sidney CDSOA distributions, even though Chez Sidney 

had indicated support for the petition via its questionnaire responses during the initial investigation, because it 

later indicated that it “took no position” on the ITC’s final 

questionnaire. 684 F.3d at 1377. Because we had found 
TAMPA BAY FISHERIES, INC. v. US 9

in SKF that the Byrd Amendment did not “reward or 

penalize abstract expression by itself,” we concluded that, 

where a “producer submit[s] two detailed responses, 

check[ed] the ‘support’ box in its preliminary response but 

check[ed] the ‘take no position’ box in its final response,” 

such a producer is eligible for CDSOA distributions. Id. 

at 1381.

Lastly, in Ashley Furniture, we reiterated our decision 

in SKF. 734 F.3d at 1310. Specifically, we stated:

SKF resolved the facial First Amendment challenge presented in [the present] case[]. We are 

bound to follow this precedent and are not free to 

revisit the First Amendment arguments that were 

before the SKF panel. To the extent that Appellants argue that recent Supreme Court precedent 

overruled our SKF holding, we do not agree. We 

also reject the Appellants’ as-applied First 

Amendment challenges because . . . the government did not deny Byrd Amendment distributions 

to Appellants solely on the basis of abstract expression.

Id. With respect to the Appellants then before us—Ashley 

Furniture and Ethan Allen—we restated that “[i]t [was] 

not enough . . . merely to supply the answers to the questionnaires;” to be an affected domestic producer one had 

to indicate support by checking the box saying so. Id. at 

1311. Because neither party had indicated support in this 

fashion, even though both provided information to the 

Commission upon request, we concluded that Ashley 

Furniture and Ethan Allen could not qualify for CDSOA 

distributions. 

Here, both parties reraise arguments already addressed in SKF, Chez Sidney, and Ashley Furniture. As 

we are bound by our prior precedent, we cannot revisit 

Appellants’ First Amendment and Equal Protection 

arguments in this case. Further, although Appellants 
10 TAMPA BAY FISHERIES, INC. v. US

argue in their reply brief that this court’s First Amendment analysis is flawed in light of the Supreme Court’s 

recent decision in McCullen v. Coakley, 134 S. Ct. 2518 

(2014), our case law is clear that any argument “not 

raised in the opening brief [is] waived.” SmithKline 

Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. 

Cir. 2006). Even if not waived, moreover, Appellants fail 

to explain how McCullen, a case involving the regulation 

of a traditional public forum—a sidewalk—that is subject 

to strict scrutiny, impacts an analysis of speech this court 

has found to be commercial speech. 134 S. Ct. at 2528; see 

SKF, 556 F.3d at 1355 (“Rewarding parties under the 

circumstances here is similar to commercially contracting 

with them to assist in the performance of a government 

function, in this particular context assisting in the enforcement of government policy in litigation. The well 

established Central Hudson test seems appropriate.” 

(citing Central Hudson, 447 U.S. 577, 566 (1980))). Accordingly, Appellants’ arguments are unpersuasive.

Additionally, Tampa Bay’s statutory claim that it 

should be considered a petitioner simply because it submitted responses to the Commission’s questionnaires also 

must be dismissed in light of this court’s prior decisions. 

At oral argument, Tampa Bay conceded that it answered 

“Oppose” in response to the Commission’s question 

whether it supported, opposed, or took no position as to 

the 2003 petition. Oral Arg. at 00:35–54, available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

12-1419.mp3. As explained in SKF and Ashley Furniture, 

a party that states it opposes the petition has not met the 

support requirement and is not entitled to CDSOA distributions, regardless of its submission of information in 

response to the questionnaires. SKF, 556 F.3d at 1358 

(“Congress could permissibly conclude that it is not required to reward an opposing party.”); Ashley Furniture, 

734 F.3d at 1311 (explaining that a party who “indicate[d] 
TAMPA BAY FISHERIES, INC. v. US 11

only opposition to the petition in questionnaires” cannot 

be considered a petition supporter). 

Similarly, Singleton’s claim that it was entitled to 

CDSOA distributions because it supported the 2003 

petition by offering financial support to petitioners is 

unavailing. As we now have said repeatedly, in order to 

be considered an affected domestic producer, one must 

indicate support of a petition “by letter or through questionnaire response.” 19 U.S.C. § 1675c(d)(1); SKF, 556 

F.3d at 1342; Ashley Furniture, 734 F.3d at 1311; see also 

Giorgio Foods, Inc. v. United States, No. 13-1304, slip op. 

at 11 (Fed. Cir. Apr. 24, 2014). Because Singleton made 

no allegation in the amended complaint that it had indicated support in the manner required by statute, the 

Trade Court did not err when it dismissed the remainder 

of Singleton’s claims. See Ashley Furniture, 734 F.3d at 

1311 (“Appellants did not indicate support for the petition 

in a questionnaire and did not actively oppose the petition. We hold that Appellants have not supported the 

petition under the plain meaning of the Byrd Amendment.”). 

CONCLUSION

Because the Trade Court correctly determined that 

Appellants failed to properly allege that they had supported the petition and that their statutory claims were 

foreclosed by this court’s precedent, we affirm.

AFFIRMED